HOW LONG A GREEN CARD HOLDER CAN STAY OUTSIDE USA AND STILL MAINTAIN PERMANENT RESIDENT STATUS TO BE ELIGIBLE TO APPLY FOR NATURALIZATION

Lal Varghese, Attorney at Law, Dallas

The law (IIRAIRA) enacted by the Congress in 1996, and became effective from 09/30/1996 does not change the underlying rules regarding the maintenance of Lawful Permanent Resident Status (hereinafter LPR), but the Green Card holders should aware that new procedures at the airports when returning to the US, and new sensitivity to issues of maintenance of LPR status on the part the US CIS (formerly INS) inspectors at the port of entry may questioning of LPRs arriving from abroad much more probing than in the past, and make it crucial for the LPRs to maintain their status in USA. Many LPRs believe that as long as they return to the US every year (commonly known as coming for renewing Green Cards) they can maintain their status as LPR without the risk of loosing the same. Another group of LPRs think that they can maintain their LPR status as long as they pay their taxes in the US as ‘residents’, do not break any laws in the US, and spend some minimal time each year in the US, they will not loose their status. Both these groups of LPRs are absolutely wrong. Strictly speaking an LPR cannot stay outside the US for extended period of time, since an LPR is expected to stay permanently in America. Hence retaining once LPR status is not quite simple, particularly for those LPRs who are staying extending period of time outside the United States for many reasons. The passage of new immigration law on 09/30/1996, and its implementation by the inspectors at the airports adds new wrinkles, which must be taken seriously by all LPRS staying outside the US for extended period of time. The general rules regarding entry into the United States by persons previously granted LPR status are as follows:

1. Every alien, including an alien previously admitted for LPR status is subject to inspection by US CIS inspectors at the port of entry when arriving in the US;
2. Every arriving alien who is attempting to “enter” the US is subject to possible exclusion under the new law (IIRAIRA);
3. An arriving alien who was previously granted status as an LPR is not attempting to “enter” the US if returning from a trip abroad which was “brief”, casual, and innocent;
4. An LPR whether attempting to “enter” or not is considered as a “special immigrant” or “returning resident” not subject to nay numerical limitation on the number of admissions each if “returning from a temporary visit abroad”;
Only the third rule was modified by the new law (IIRAIRA). The new law provided concrete criteria for the “brief, casual, and innocent” rule concept. Under the new law an LPR is not considered to be “seeking admission” when returning from abroad unless he or she:

1. has abandoned or relinquished that status;
2. has been absent from the United States for a continuous period in excess of 180 days (six months); (this lead to the panic of misconception among the LPRs that they cannot stay more than six months under the new law as opposed to the less than one year rule under the old rule)
3. has engaged in illegal activity after departure from the US;
4. has departed from the US while under legal process seeking his or her removal from the country;
5. has committed certain criminal offenses and has not been granted relief from those offenses; or
6. enters or attempts to enter without inspection by an immigration officer.

It is important to note that an LPR who has been absent for less than 180 days (six months) may still be subject to removal proceedings as an alien “seeking admission”, if US CIS charges that he or she has “abandoned or relinquished” the LPR status. To determine the alien’s intention with respect to whether an absence from the US is “temporary”,
US CIS or immigration judge will examine factors such as location of the alien’s family ties, property holdings, and job; whether the alien has filed tax returns claiming to be a “resident” or “non resident” tax payer, the alien’s purpose in departing from the US; whether the visit abroad could be expected to terminate within a short period of time; and whether the termination date of the visit abroad could be fixed by some early event;

The LPRs pattern of travel is extremely important: if the alien spends significant amounts of time outside the United States over the course of several years, returning only for brief annual visits on round trip tickets both originating in a foreign country, then even possession of US residential property, payment of US taxes and US family ties may be insufficient to over come a finding of abandonment of LPR status. The only alternative is to become a US citizen at the earliest possible opportunity. Any absences of more than six months will automatically makes an alien ineligible for applying for naturalization. If the absence is more than one with a re-entry permit, the alien is eligible to apply for naturalization only after four years and one day after returning to the US. The alien who will be abroad for considerable period of time with a re-entry permit must take certain steps to assure that his/her permanent resident status is not lost. In all cases, the alien should file US tax returns as a resident even if he/she does not have any income in the US, but by including the foreign income. Other important steps to maintain permanent resident status while living outside United States are as follows:

1. The maintenance of a US address, even if it is at the home of friend or relative. It is better to have continued ownership of property in the US;
2. Leaving close family members like spouse and children in the US while staying extended period of time outside by the alien;
3. The alien should leave an open bank account and continue to use the same even outside US, and should keep all monthly statements for future use in case needed;
4. The alien should maintain and operate US credit card accounts and should keep the monthly statements for future use if needed;
5. Maintain and keep a US driver’s license, and filing of joint tax returns with the spouse, and all children showing as dependents; (never file a U. S tax return as non resident alien)
6. Ownership of stocks, bonds and other securities in the joint names spouses;
7. Children studying schools and colleges and keeping their transcripts; and
8. Any other documents or evidence showing strong ties to the US.